Events
The applicant’s husband O.B. died as a result of a fire at the shopping centre where he worked. The applicant filed a lawsuit at the Civil Court of First Instance for pecuniary and non-pecuniary damages, without prejudice to his rights regarding the excess. Upon the court’s decision of lack of jurisdiction, the file was registered to the 1st Civil Court of First Instance. The compensation case filed by O.B.’s mother, father and siblings at the 5th Civil Court of First Instance was consolidated with the compensation case filed by the applicant.
The Civil Court of First Instance, stating that the incident in dispute was within the scope of the Social Insurance Law No. 506 and was an occupational accident, decided that the court had no jurisdiction and that the file should be sent to the competent labour court; upon this decision, the file was sent to the labour court. The labour court evaluated the expert report and decided to reject the claim for pecuniary compensation and to accept the claim for non-pecuniary compensation, stating that the pecuniary damage was covered by the income connected by the institution. The appealed decision was reversed by the Court of Cassation on the grounds that there was a contradiction between the expert reports. Upon the reversal, the Court ordered expert examinations again. After the aforementioned expert examinations, the applicant amended and increased his claim for pecuniary compensation with the petition submitted to the court. The court decided to accept the case. In line with the decision of the General Assembly of the Court of Cassation Unification of Jurisprudence (YİBGK), the Court of Cassation reversed this decision of acceptance on the grounds that it was not possible to amend the claim after the reversal. Upon the reversal, the court ruled for pecuniary and non-pecuniary damages, adhering to the amount requested in the petition, and the decision was upheld by the Court of Cassation.
Allegations
The applicant claimed that his right to access to court was violated due to the rejection of his amendment request on the grounds that amendment could not be made after the reversal decision despite the continuation of the proceedings, and his right to be tried within a reasonable time due to the long duration of the proceedings.
Assessment of the Court
A. Regarding the Allegation of Violation of the Right of Access to Court
In the said decision of the YİBGK, which constitutes the basis for the reasoning of the court decision in the concrete dispute, it is stated that Article 84 of the abrogated Law No. 1086 means that amendment of pleading can only be possible during the investigation and trial phases, that is, until the investigation is completed and the judgement is rendered, and that it is understood that the parties cannot use this right after the investigation and trial period.1086 There is no explicit or implicit provision in the abrogated Law No. 6100 and the relevant articles of the Law No. 6100 that the amendment is not possible after the reversal. The general rules regarding the impossibility of amendment after reversal are determined by case law. In the decision of the YİBGK, while interpreting that amendment cannot be made after the reversal, the investigation stage was limited to the trial process before the reversal decision at the court of first instance, and no evaluation was made regarding the nature of the procedures for the investigation after the reversal decision.
In the concrete case, with the decisions of the Supreme Court of Appeals taken as a basis for the judgement by the courts, the investigation phase is limited only to the proceedings before the reversal decision of the court of first instance, and no distinction and exception is made for the cases where investigation procedures are carried out after the reversal decisions. Therefore, it can be said that the categorical interpretation of the courts that it is not possible to make amendments after the reversal decision for all disputes significantly limits the right of access to court. As a matter of fact, with the amendment dated 28/7/2020, the legislator clearly regulated that if the court of first instance takes an action regarding the investigation, amendment can be made until the investigation is concluded.
In the light of these explanations, it is concluded that although there is no clear obstacle in the legislation to request amendment after the reversal decision in cases where the investigation is carried out in accordance with the reversal decision, the comments that it is not possible to make amendment after the reversal decision in all cases without any exceptions with a categorical approach are unpredictable and these comments are not in accordance with the criterion of legality in the constitutional sense.
In the proceedings subject to the application, it has been concluded that the interference to the applicant’s right of access to court by not accepting the applicant’s request for amendment on the grounds that amendment cannot be made after the reversal decision, although the applicant returned to the investigation stage due to the procedures for the investigation in accordance with the reversal decision after the reversal decision, does not have a legal basis.
For the reasons explained above, the Constitutional Court decided that the right to access to court within the scope of the right to a fair trial was violated.
B. Regarding the Allegation of Violation of the Right to a Reasonable Trial
When determining the duration of the proceedings in relation to disputes concerning civil rights and obligations, the starting date of the duration is taken as the date of filing of the lawsuit, and the expiry date of the duration is taken as the date of the end of the proceedings, which often includes the execution phase. When assessing the reasonableness of the duration of the proceedings before the labour courts, the complexity of the proceedings and the number of degrees, the attitude of the parties and the relevant authorities in the proceedings, and the nature of the applicant’s interest in the expeditious conclusion of the proceedings are taken into consideration. Considering the aforementioned principles, it is concluded that the duration of the trial of 17 years and 3 months is not reasonable.
For the reasons explained, the Constitutional Court decided that the right to be tried within a reasonable time within the scope of the right to a fair trial was violated.
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